POTW 7: “FORE!!!”

January 7, 2011

The tranquility of golf is something that cannot be denied. A walk through nature; a game of chess with oneself; a game that Bobby Jones described as played on a course “located in the 6-inch space between your ears.” Truly, golf is about focus, patience, and skill. It teaches many lessons, a reason why it such a great game for the youth of America.

Unfortunately, that tranquility is something that is not preserved by the game itself. It’s a special feature of golf that is preserved by the players who respect it. Like the many “unwritten rules” of baseball, golf’s billing as a “gentleman’s game” cannot be enforced as a rule. It simply must be respected. And anyone who has played a public course in a city knows how much the respect has waned with the boom of golf over the past decade. Balls flying into all different fairways; carts driving where they shouldn’t be; bunkers left unraked; beer cans lining fairways. As the masses flock to golf, the tranquility of the game is eroding away.

New York’s highest court recently encountered a case regarding the tranquility of the game–specifically, whether a golfer had to yell “fore” before every swing. Dr. Anoop Kapoor and Dr. Azad Anand were playing on a nine-hole course in October 2002 when Kapoor took the swing without the warning. Anand was hit in the head and sued.

Importantly, the NY Court of Appeals decided that Anand “assumed the risk” by being on the golf course.

A person who chooses to participate in a sport or recreational activity consents to certain risks that “are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State, 90 NY2d 471, 484 [1997]). A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and “how those assumed risks qualified defendant’s duty to him” (Turcotte v Fell, 68 NY2d 432, 438 [1986]). However, a plaintiff “will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks” (Morgan, 90 NY2d at 485 [citations omitted]).

Here, Kapoor’s failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which Anand consented. Rather, the manner in which Anand was injured–being hit without warning by a “shanked” shot while one searches for one’s own ball–reflects a commonly appreciated risk of golf.

I applaud the Court for preserving one of golf’s sacred rules. There is no need to disturb the tranquility of golf unless the golfer’s actions are reckless or knowingly put someone in danger. Imagine your local course, filled with Sunday golfers, where every golfer by law had to yell “fore” before each shot. If you play golf to relax (like I do), nothing could be more nerve racking.

So here’s to you, NY Court of Appeals. While I haven’t agreed with all of your decisions (Mr. Cardozo), thank you for preserving the game.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: